When a person is killed, and the fault belongs to another, the family of the deceased person is typically able to sue the person at fault (tortfeasor) for damages. Because such claims usually must be brought within a certain period of time, it is important to contact a Wrongful Death or Personal Injury Attorney to ensure you meet the deadline. View qualified Wrongful Death Firms in your area to find Wrongful Death Lawyers.
At common law, a dead person cannot bring a lawsuit, but, generally, those who are most closely related to the deceased have the right to sue for the loss of that person. Typically, if there is a surviving spouse and children, they share the right and bring the suit jointly. If there is neither spouse nor children, usually the deceased’s parents are allowed to conduct the suit.
It appears that in most states, however, a wrongful death claim cannot be brought against a family member.
The determination of the amount of damages takes into account several economic and emotional factors, including:
- Medical expenses of the final illness
- Burial expenses
- Loss of earnings – which will factor in the deceased’s life expectancy and projected earnings over that lifetime
- Loss of future services – including “help around the house”
- Loss of consortium – the care, comfort and companionship of the person
- Punitive damages – but only in certain cases
- Pain and suffering
- Property damage – if any
A wrongful death can occur in a myriad of situations. Some of the most common that result in damage awards are:
- Medical Malpractice
- Product Liability
- Automobile Accidents
Cause of Action
The plaintiffs in a wrongful death claim usually have to prove negligence, strict liability or intentional conduct.
For negligence, the plaintiff must prove the defendant:
- Owed the deceased a duty
- He failed to meet the duty
- The deceased’s death was a result of the failure (proximate cause)
- The amount of damages
For strict liability (see Product Liability), the plaintiff must typically demonstrate:
- A defective product of the type where strict liability is imposed, such as one containing asbestos
- The defect was the proximate cause of the deceased’s death
Although intentional conduct is more difficult to demonstrate than negligent conduct, plaintiffs may choose to carry this higher burden because punitive damages (those awarded to punish a tortfeasor) may be awarded, which could result in much greater recovery than simply actual damages. To prevail on this claim, the plaintiffs must demonstrate essentially the same elements as negligence, with the additional showing that the defendant either:
- Intentionally caused the injuries that resulted in the death; or
- Was so reckless, indifferent and wanton in his actions that resulted in decedent’s death, that he should be treated as if he did it on purpose.
Personal Injury, Product Liability, Litigation, Medical Malpractice, Death Attorneys, Death Lawyers